5 Dakota 298 | Supreme Court Of The Territory Of Dakota | 1888
This is an appeal from a judgment of the district court for Sanborn county, sustaining a demurrer to the complaint of the plaintiff. Two demurrers were interposed; one by the defendant the Chicago, Milwaukee & St. Paul Railway Company, and one by defendant Charles H. Prior. The ground of demurrer, as specified by said defendants, was that the complaint did not state sufficient facts to constitute a cause of action. The defendant John Paul filed a disclaimer. On the hearing of the demurrers the same were sustained, and, the plaintiff electing to stand on his complaint, judgment was entered in favor of defendants, from which judgment plaintiff appealed.
The plaintiff, in his complaint, alleges, in substance, that on September 18, 1883, plaintiff was the owner of the N. E. £ of section 28, township 107 N., of range 62, upon which he then and ever since has resided. That by warranty deed dated September 18, 1883, he conveyed a portion of said land to the defendant Charles H. Prior. That by a memorandum in writing it was mutually agreed between said plaintiff and said Charles H. Prior that, in consideration of the conveyance of said land to said Prior for the sum of $2,500, said Prior would lay out a town, and plat said land into lots and blocks, streets and alleys; and that plaintiff might reserve to himself one block of land of the average-sized blocks of said town, not to exceed 300 feet, square; and that the block that should be reserved should be the one on which the plaintiff’s dwelling-house then stood.. That the deed of conveyance from plaintiff to said Prior contained this reservation: “Reserving to himself his dwelling-house, and one block of land where the same is situated, to be reconveyed to said Hollenbeck by said Prior, as per memorandum this day made.” That after the making of said deed, and prior to October 13,1883, said Prior duly platted said land into blocks of the average size of 300 feet square, which plat was. duly recorded October 17, 1883, in the office of the register of' deeds of Sanborn county. That when said plat was completed, the portion of land on which plaintiff’s dwelling-house stood was shown as a fractional block, and numbered block 29. That.
All facts sufficiently pleaded are admitted by the demurrers ■of defendants; consequently the only question for this court to ■determine is, (taking the statements of the complaint to be true,) can a court of equity grant the relief prayed for? It will be observed that the plaintiff does not ask that defendant Prior be compelled to convey to him block 29 as platted, but a block •of land 300 feet square, which shall include within its boundaries the plaintiff’s dwelling-house. In order to do this, the •court would be obliged to replat the town of Woonsocket. The •district court of Sanborn county was asked to grant the relief prayed for, because in the deed of conveyance from the plaintiff to Prior there was a reservation of a block of land where plaintiff’s dwelling-house stood, and by the written memorandum • executed about the same time said block was to be an average-sized block not exceeding 300 feet square. We think the district court did right in sustaining the demurrers of defendants, for the reason that the contract set forth in the complaint is too .indefinite and uncertain to be specifically enforced by a court of
How could the district court tell from the complaint what the location and boundaries of the proposed block were ? And, if so, how could it change the plat of the town of Woonsocket in this action?
Appellant seeks to avoid the objections here suggested by alleging that the contract had been partially performed by the plaintiff; that he was in possession of the land to be reconveyed, and still remains in possession; 'but it cannot be claimed that the plaintiff went into possession of the land in pursuance of the contract, for he was residing on the land when the contract was made. If there has been any part performance of the contract, it has been performed by Prior, and his part performance could not aid the plaintiff in this action. Part performance, which courts recognize as sufficient to entitle a person to specific performance of contracts relating to land, is improvement and expenditure made by a purchaser let into possession, induced or knowingly permitted by the vendor. The appellant, in support of his contention, relies principally upon Purinton v. Railroad Co., 46 Ill. 297. An examination of that case, however, shows that it supports the position of the respondent. Purinton had agreed to convey to the railway company a right of way across his land 80 feet wide. No definite place was mentioned in the contract as to where the right of way should
“It is true, appellants deny that Purinton ever put the company into possession, but they admit that he permitted them
It will be seen that it is impossible for any person to ascertain from the contract set forth in the complaint how much land was to be conveyed by Prior to Hollenbeck, or where it should be located. Judgment affirmed.